Vanderbilt Law Review

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The effect of an exculpatory clause' in a federal contract was the subject of two recent cases brought against the government under the Federal Tort Claims Act. In United States v. Kelly the subject of the contract was the sale of "edible garbage," and the contract provided that the garbage was sold "as is" and "without recourse" against the government, and that in any case where the liability of the government was established, the recovery would be limited to the contract price. In Air Transport Associates v. United States the subject of the contract was the use by plaintiff's commercial transports of an airfield owned and operated by the government. The contract contained a provision which purported to release the government from all future liability for the negligence of its employees. The plaintiff in the Kelly case, who used the garbage as feed stuff on his farm, alleged that the government negligently delivered contaminated garbage to him and that as a result several of his cattle died from lead poisoning. The plaintiff in the Air Transport case alleged that the government was negligent in instructing the plaintiff's transport to land on a runway on which a government truck was stalled at night without lights, causing the transport to collide with the truck. In both cases the government contended that the contractual provisions operated to bar recovery by plaintiffs; in both cases the appellate court allowed plaintiffs to recover. The contract provisions in the Kelly case were held to be inapplicable to a tort action for negligence, but the court did not indicate whether they were applying state or federal law. The exculpatory clause in the Air Transport case was held invalid as against public policy under the law of the state where the contract was made and where the negligent act occurred.

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